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210. Secondly, despite the fact that no humpback whales and few fin whales have been
caught during JARPA II, Japan’s emphasis on multi-species competition and ecosystem research as
the bases for the JARPA II sample sizes for all three species is unwavering. In the view of the
Court, the gap between the target sample sizes for fin and humpback whales in the JARPA II
Research Plan and the actual take of these two species undermines Japan’s argument that the
objectives relating to ecosystem research and multi-species competition justify the larger target
sample size for minke whales, as compared to that in JARPA.
211. The Court also notes Japan’s contention that it can rely on non-lethal methods to study
humpback and fin whales to construct an ecosystem model. If this JARPA II research objective
can be achieved through non-lethal methods, it suggests that there is no strict scientific necessity to
use lethal methods in respect of this objective.
212. Japan’s continued reliance on the first two JARPA II objectives to justify the target
sample sizes, despite the discrepancy between the actual take and those targets, coupled with its
statement that JARPA II can obtain meaningful scientific results based on the far more limited
actual take, cast further doubt on the characterization of JARPA II as a programme for purposes of
scientific research. This evidence suggests that the target sample sizes are larger than are
reasonable in relation to achieving JARPA II’s stated objectives. The fact that the actual take of fin
and humpback whales is largely, if not entirely, a function of political and logistical considerations,
further weakens the purported relationship between JARPA II’s research objectives and the specific
sample size targets for each species — in particular, the decision to engage in the lethal sampling of
minke whales on a relatively large scale.
(c) Additional aspects of the design and implementation of JARPA II
213. The Court now turns to several additional aspects of JARPA II to which the Parties
called attention.
(i) Open-ended time frame
214. Japan asserts that “JARPA II is a long-term research programme and has no specified
termination date because its primary objective (i.e., monitoring the Antarctic ecosystem) requires a
continuing programme of research”. The programme is organized into six-year “research phases”
and “a review will be held and revisions made to the programme if required” after each such
period. The first review by the Scientific Committee is scheduled to take place in 2014 (see
paragraph 119 above). According to Japan, Article VIII, paragraph 4, of the Convention
contemplates such open-ended research when it states that “continuous collection and analysis of
biological data . . . are indispensable to sound and constructive management of the whale
fisheries”.